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the nett yearly value for her life, is now subject not only to her husband's conveyances, contracts, charges and devises, but also to any declaration to bar the same made by a deed to which he is a party, or by his will. (Wharton's Law Lexicon, 6th ed., 316 and 408, under "Dower and Freebench.")

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63. A wife married before the Dower Act joins with her husband, for the purpose of releasing her dower, in mortgaging his freehold land, and the equity of redemption is reserved to her husband. his death the mortgage is repaid, and the widow claims her dower. Can such claim be supported at law or in equity? State the grounds of your answer.

No, because this is a case which is entirely governed by the old law. The old law was that dower only attached to the legal estate and not to the equitable estate for any purpose. When the wife mortgaged the freehold land she voluntarily concurred in her husband's act when he gave up the legal estate with all its incidents, knowing (as she is presumed to know) that by so doing her husband had only after the mortgage an equitable estate in the freehold land, and to that dower did not attach. (See Dawson v. The Bank of Whitehaven, 46 L. J. R. Ch. 884.)

If the wife had been married since the Dower Act the wife could have claimed dower. (See Meek v. Chamberlain and Wife, 51 L. J. Q. B. 99.)

ELECTION.

64. Explain and illustrate the doctrine of election, and state how fur the following proposition respecting testamentary gifts is law:"Quod autem diximus alienam rem posse legari, ita intelligendum est, si defunctus sciebat alienam esse, non si ignorabat. Forsitan enim si scivesset alienam rem esse, non legasset.”

Election is the choosing between two rights by a person who derives one of them under an instrument in which a clear intention

appears expressly or by implication that he should not enjoy both. (Smith's Man. Eq., 12th ed., 405.) Two essentials are necessary in every case before an election can arise: (1) that property which belongs to one person (A.) must be given to another person by the testator; and (2) that the testator at the same time gives to A. property of his (the testator's) own. (Snell's Equity, 5th ed., 220.) The person (A.) put to the election must either confirm the whole will so far as he is able and convey away his own property and receive the property of the testator in lieu thereof, or he must elect to keep his own property and to take whatever property there may be left for him, after compensating the person injured by his election, out of the property left by the testator to A. if he carried out his intentions. Election may arise under any instrument, be it marriage articles, marriage settlement, will, or any other valid instrument (see Streatfield v. Streatfield, 1 Wh. & Tud. L. C. Eq. 369; Haynes's Student's L. C. 178); and may arise under an intestacy, for the Statute of Distributions is in substance nothing more than a will made by the legislature for the intestate. (See Cooper v. Cooper, L. R. (H. L.) 7 English and Irish App. Cas. 53; 44 L. J. Ch. 6.) These cases illustrate the doctrine.

The Latin passage (supra) is quoted from the second book of the Institutes of Justinian, 5th section, and shows what the Roman law was on the subject. By that law the gift of another's property was only valid if it was made advisedly, but not if it was made under an erroneous supposition that the subject-matter belonged to the testator. (See F. O. Haynes's Outlines of Equity, 4th ed., 325, where the above passage is also quoted, and the above doctrine is clearly explained.)

The English law holds a gift of another's property a valid gift, whether it was made either advisedly or in error by the testator. The above doctrine only applies to gifts by will. Election under the operation of the doctrine of satisfaction is distinct from this equitable doctrine. (See H. A. Smith's Equity, Chap. IX., sect. 1.)

For further information and explanation upon this interesting though technical doctrine, see a tractate upon it by Mr. J. C. H Flood.

65. When a case of election is raised, what are the rights of th party compelled to elect? How is the doctrine applied in the

various cases of persons under disability? Mention any recent legislation beariny on its application to married women.

He or she is entitled before electing to be informed of his or her rights to elect, and the consequences of his or her determining to elect one way or the other, and for that purpose, if necessary, to commence an action in the High Court of Justice (Chancery Division) to have an account taken of the value of each of the respective properties as to which he or she is called upon to choose between. Every person is not presumed to know this doctrine, for the maxim "Ignorantia legis non excusat" does not embrace this doctrine.

When the person compelled to elect has thus been put in a position to deliberately elect, he or she must elect to take under or against the instrument creating the power of election. If he or she elects to confirm the instrument, then the intention of its author must be carried out by conveying his or her own property to the person indicated therein, in return for receiving some of the property of the author of the instrument. If he or she, on the other hand, does not elect to confirm the instrument by carrying out its author's intention, then he or she does not wholly forfeit all the property given to him or her by that instrument, but only so much as will compensate in point of value the person indicated therein for the loss he would but for this doctrine sustain by the acts of the electing party.

The doctrine is applied in the various cases of persons under disability as follows:

As regards married women, the practice formerly varied (see notes to Gretton v. Haward, 1 Swanst. 413); but now it is settled that a married woman can elect like a feme sole, except in the following cases :-(1) Where she is non compos mentis, when the Court only can elect for her; (2) where after marriage a fortune is settled upon her in lieu of dower (Frank v. Frank, 3 My. & C. 171); and (3) where property is settled to her separate use without power of anticipation (Robinson v. Wheelwright, 21 Beav. 214; 6 D. G. M. & G. 535. See also 45 & 46 Vict. c. 75, as regards a married woman's present position in law with reference to her property. See also Wilder v. Pigott, 52 L. J. Ch. 141, following Barrow v. Barrow, 4 K. & J. 409, and Smith v. Lucas, L. R. 18

Ch. D. 531.

Also see 3 & 4 Will. IV. c. 74, s. 77, and 20 & 21 Vict. c. 57.) By virtue of sect. 39 of the Conveyancing and Law of Property Act, 1881, the Court has power on a summary application by summons to bind a married woman's interest in property settled to her separate use, without power of anticipation, provided (1) the Court thinks fit, and (2) it appears to the Court to be for her benefit, and (3) it be made with her consent. This section does not give power to the Court to remove the restraint on anticipation. (See Hodges v. Hodges, 51 L. J. Ch. 549; Tamplin v. Miller, 17 L. J. Ch. 40; and Re Busby, 17 L. J. N. C. 106.)

As regards infants, the practice of the Courts is to elect for them, unless no one will be prejudiced by the matter standing over until the infant has attained his or her majority, when the Court will defer the question until then. (See Streatfield v. Streatfield, Cas. Temp. Talbot, 176; 1 Wh. & Tud. L. C. Eq. 369; Haynes's Student's Leading Cases, 178.)

As regards lunatics, the High Court in all cases elects for them. (See Wilder v. Pigott, 52 L. J. Ch. 141. See F. O. Haynes's Outlines of Equity, 4th ed., 345.)

ESTATES TAIL.

66. What is meant by a "protector of a settlement," and what purpose does he serve? In the case of a settlement "to the use of trustees, in trust for A. for life, with remainder to the use of his children as tenants in common in tail, with remainders over,” A. obtains the conveyance of the legal estate from the trustees; who is the protector of the settlement, and who would be the necessary parties to bar the entails?

A protector of a settlement is a person whose consent is required before a tenant in tail in remainder can bar the entail in such a manner as to defeat the remaindermen and reversioners; or, in ether words, is a person whose consent is required before a tenant in tail in remainder can create a larger estate than a base fee by a disentailing assurance. A protector is generally the first beneficial

tenant for life, whose estate is created by the same instrument as the tenancy in tail is; but instead of this, not more than three persons may be specially appointed by the settlor or testator, by the settlement or will creating the estate tail, to be together the protector. (2 Prideaux, 565; 3 & 4 Will. IV. c. 74, s. 22.)

In the above case, A. (being the beneficial though not legal owner of the first life estate) will be the protector, and he, together with all his children, who being tenants in common take each a vested share or part of the whole estate, will be the necessary parties to bar the entail. (Re Dudson's Contract, 47 L. J. Ch. 632; L. R. 8 Ch. D. 632.)

67. What was the rule of law laid down in "Wild's case," and how far has such rule been held to be applicable to personalty?

The rule in Wild's case is that where there is a devise to a person and his children or issue, and he has no issue at the time of the devise, there such person will take an estate tail; but if a man devises land to a person and his children or issue, and he then has issue of his body, there the express intent may take effect, according to the rule of the common law, if no manifest intent appears in the will to the contrary, and therefore in such case they (the parent and his children) shall have but a joint estate for life.

It was further resolved in the above case that if a testator devised land to husband and wife, and after their decease to their children, or the remainder to their children; in this case, although they have not any child at the time, yet every child which they shall have thereafter may take, by way of remainder, according to the rule of law.

The rule in Wild's case, so far as it tends to cut down the interest of the parent to a life estate, is applicable to personalty; so far as it tends to enlarge the interest of the parent to an estate tail, it is not so applicable. (Tud. L. C. Conv. 581, 592; Mozley and Whiteley's Law Dict. 491; Haynes's Student's Leading Cases, 192.)

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